Page last updated at 19:34 GMT, Tuesday, 16 February 2010

US dilemma over how to deal with terror suspects

Watch Peter Marshall's Newsnight report in full

By Peter Marshall
BBC Newsnight

If the terror attacks of 9/11 defined the Bush presidency, opposition to the way George W Bush handled the issue became a motif of President Barack Obama's hope over fear approach.

But now Mr Obama is facing terror on his own watch and he has got a dilemma - how to deal with those accused of plotting destruction and whether such acts should be treated as warfare or an ordinary crime?

He talked to the Detroit field office and officers from Custom and Borders protection for about 50 minutes. That's different to being in a room with experts on al-Qaeda in Yemen, with experts who know the signals intelligence which may be available
Gen Michael Hayden

The question has become even more urgent in the wake of an alleged attempt to bomb an airliner over Detroit on Christmas Day, and the arrest of the alleged bomber, Umar Farouk Abdulmutallab.

In agony from burns caused by the explosives hidden in his underwear, Mr Abdulmutallab told his captors where he had been trained and where he had got the explosives.

He in turn was told by those arresting him of his right to remain silent and was charged.

Interrogation chance missed

General Michael Hayden, a former US director of national security and former CIA chief, believes that this was a mistake which resulted in the chance to glean vital intelligence being squandered:

"He talked to the Detroit field office and officers from Custom and Borders protection for about 50 minutes," Gen Hayden said. "That's different to being in a room with experts on al-Qaeda in Yemen, with experts who know the signals intelligence which may be available."

Gen Hayden said Mr Abdulmutallab should have been treated as a prisoner of war - that if he had been he could have been interrogated over an extended period using legally approved techniques

"This individual is an enemy combatant. He should be interrogated within the laws of armed conflict as an enemy combatant," he said.

Khalid Sheikh Mohammed in July 2009
9/11 mastermind Khalid Sheikh Mohammed is set for a New York trial

The Obama administration says the shoe bomber and all similar cases were handled in exactly the same way under Mr Bush, and that the system is robust.

But while the Obama cabinet initially seemed complacent that "the system worked" over the Christmas plot, the president himself made plain, it had not.

"This was a screw-up that could have been disastrous. We dodged a bullet but just barely," the White House quoted Mr Obama as telling senior officials when they met to discuss the attack.

At times the US' overall approach to security and intelligence has looked confused, even contradictory.

While Mr Obama was extolling the virtues of the criminal justice system for terrorist cases, he was also beefing up Mr Bush's controversial military commissions and indicating that some detainees could be detained indefinitely without any semblance of a court hearing.

Manhattan trial

A flashpoint for the justice versus security debate has been US Attorney General Eric Holder's decision to put Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, on trial in Manhattan - rather than in Guantanamo Bay or another military base.

Last month New York's politicians told the White House the trial would be too expensive to host in downtown New York.

Now Nick Valentine, the mayor of Newburgh, a town about an hour further up the Hudson River, has volunteered his newly refurbished courthouse as an alternative.

There's a lot of fear factor being generated by members of Congress, by former Bush administration officials. I think it's extremely unhelpful
Sarah Mendelson, director of human rights and security at the Center for Strategic and International Studies in Washington

However, the suggestion has sparked concern amongst many locals, who say a terrorism trial is the last thing they want, and that it should not be held in an urban area as it brings with it the threat of attack.

That is a fear shared by a group of US senators from both parties, including former vice-presidential candidate Joe Lieberman who said of the plan: "We're inviting attack."

Mr Lieberman and his colleagues are determined to stop the 9/11 trials - and others - by withdrawing funds.

When I challenged Republican Senator Lindsey Graham, who serves on the Senate's Homeland Security Committee, about why American allies can deal with such cases in court, but the US cannot, he said that the difference was that the US was at war:

"President Obama says we're at war with al-Qaeda," he explained. "The UK and Europeans change their laws to deal with this dilemma. We don't have to - under war we can detain indefinitely. We should use that."

Possible compromise

Sarah Mendelson, director of human rights and security at the Center for Strategic and International Studies in Washington warns against overreaction:

"There's a lot of fear factor being generated by members of Congress, by former Bush administration officials. I think it's extremely unhelpful," she said.

"I think a lot of us believed splitting the system was not a good idea. But I think the Obama administration is in an era of transitional justice."

Now Mr Obama is hinting at a compromise, switching the Khalid Sheikh Mohammed case to a military tribunal, but leaving Mr Abdulmutallab's case to be heard by a criminal court.

What is more, the White House claims that even though he has been charged, Mr Abdulmutallab is revealing more intelligence all of the time.

Though Gen Hayden is not convinced:

"We are talking about an attack on the American homeland... If you agree with the premise 'oh he'll give us more information as he gets closer to sentencing', you have to agree as you underwrite that premise that he actually has more information to give that he now owns and is keeping to himself even as dangers to America lurk out there."




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